Citation Nr: 21005821 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 20-08 162 DATE: February 2, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for liver cancer is reopened. REMANDED Entitlement to service connection for liver cancer is remanded. FINDING OF FACT 1. An unappealed January 2000 rating decision denied service connection for metastatic carcinoid tumors of colon, liver, and gallbladder. 2. The Veteran withdrew his appeal of a November 2015 rating decision that denied service connection for metastatic carcinoid tumors of colon, liver, and gallbladder. 3. Evidence added to the record since the November 2015 rating decision, which was not previously of record, and which is not cumulative of other evidence of record, raises a reasonable possibility of substantiating the claim for entitlement to service connection for liver cancer. CONCLUSION OF LAW The criteria for reopening the claim for entitlement to service connection for liver cancer have been met. 38 U.S.C. § 5108; 39 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1958 to August 1961. This matter comes before the Board of Veterans Appeals (Board) on appeal from a rating decisions issued in July 2017, August 2017, and June 2018 by a Department of Veterans Affairs (VA) Regional Office (RO or AOJ). In December 2020, the Veteran testified at a Virtual Hearing before the undersigned Veterans Law Judge. The transcript is of record. New and Material Evidence Having Been Received, the Claim of Entitlement to Service Connection for Liver Cancer is Reopened Irrespective of the RO’s actions, it is the Board’s responsibility to consider whether it is proper for a claim to be reopened. Barnett v. Brown, 93 F.3d 1380 (Fed. Cir. 1996). Generally, unappealed rating decisions are final with the exception that a claim may be reopened by the submission of new and material evidence. When an appellant seeks to reopen a claim based on new and material evidence, the VA must first determine whether the additional evidence is “new and material.” Second, if the VA determines that new and material evidence has been added to the record, the claim is reopened and the VA must evaluate the merits of the appellant’s claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95 (1993). New evidence means evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 39 C.F.R. § 3.156(a). The regulation does not require new and material evidence as to each previously unproven element of a claim and creates a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of the new evidence is presumed; its weight is not presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In a January 2000 rating decision, the RO denied service connection for metastatic carcinoid tumors of colon, liver, and gallbladder. The RO determined that the condition neither occurred in nor was caused by service. The Veteran did not appeal that decision. There was also no new, relevant evidence received within one year of the January 2000 rating decision. As such, the rating decision became final. In January 2014, the Veteran filed a claim for service connection for physical disabilities of the abdomen and lower areas. He filed a claim for cancer due to contaminated water at Camp Lejeune in August 2014. In a November 2015 rating decision, the RO denied service connection for physical disabilities of the abdomen and lower areas and for carcinoid tumor of the cecum (claimed as carcinoid cancer). The RO determined that there was no evidence linking the cancers to the Veteran’s active service, to include his exposure to contaminated water at Camp Lejeune. This finding was based, in part, on a VA examination. The Veteran initiated and perfected his appeal of the November 2015 decision. However, prior to the promulgation of a decision on the Veteran’s appeal, the Veteran filed notices dated March 2017, wherein he indicated his intent to withdraw his appeal for “liver cancer” and in April 2017, wherein he indicated his intent to withdraw his appeal for “carcinoid tumor of the cecum.” These actions were in keeping with the tenets ascribed under Rule 204. The November 2015 decision thereby became final. Contemporaneously, in March 2017, the Veteran filed a new claim for service connection for liver cancer. New and material evidence is thereby required to reopen the Veteran’s claim of entitlement to service connection for liver cancer. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (quoting Boggs, 520 F.3d at 1337). Evidence received since the January 2000 rating decision includes the Veteran’s December 2020 testimony. He stated that his treating physician had told him that his liver cancer was caused or aggravated by his service connected appendectomy (appendicitis). He said he was specifically told that the appendix problem that he had experienced in service ultimately developed into or caused the cancer. He recalled that the surgeon, who had operated on him for his liver cancer, told him the appendectomy surgery had “left one hell of a mess there,” and that had been the “start of your whole problem.” He said that he had tried to obtain a written opinion stating such but that the physician had since retired. This evidence is new to the record, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. Accordingly, the Veteran’s petition to reopen his claim for entitlement to service connection for liver cancer is granted.   REASONS FOR REMAND Entitlement to Service Connection for Liver Cancer is Remanded. Service treatment records document a diagnosis of appendicitis with onset manifested by pain, vomiting, and nausea. The Veteran is service connected for the residuals, i.e., appendectomy. The record indicates that in October of 1994, the Veteran underwent hemicolectomy for cancer of the cecum. At that time, cancer of the liver was also diagnosed. See December 1994 private treatment record. The Veteran has consistently maintained that he was told by his surgeon that there was a relationship between the material left following the 1960 appendectomy and the growth of his tumor. He asserts that liver cancer had its initial manifestations in service. The Veteran has been afforded four VA examinations during the period on appeal, January 1999, October 2015, April 2017, and May 2018. However, none of the VA opinions obtained adequately addressed the Veteran’s theory of entitlement to service connection on a direct causation, or secondary basis, to include as due to his appendix condition or chronic residuals thereof. A remand to obtain a medical opinion is necessary. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to address the nature and etiology of his liver cancer disorder. Following examination, review of the records, and consideration of the lay evidence, the examiner should address the following: a) Identify/diagnose any disability of the liver that presently exists or that has existed during the appeal period. b) For each identified disability or disorder of the liver, state whether it is at least as likely as not (50 percent probability or greater) that the disorder: i) had its onset during active service, or ii) is etiologically related to his active service, or iii) was proximately due to his service-connected disability(ies), to include residuals of appendectomy, or iv) underwent any incremental increase in disability, regardless of its permanence, due to a service-connected disability, to include residuals of appendectomy. The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. The examiner is asked to address the Veteran’s report of being told that the in-service appendectomy resulted in scarring or damage that eventually caused his liver cancer. The report that liver cancer is slow growing and thereby initially manifested in service should also be addressed. In this regard, the examiner should state whether there is any evidence to accept or reject the proposition that the Veteran experienced an injury to his liver or experienced a chronic liver disorder in service. A complete rationale for any opinion expressed must be provided. An examiner’s report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.